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You are here: BAILII >> Databases >> The Law Commission >> Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(18) (October 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/273(18).html Cite as: [2001] EWLC 273(18)

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PART XVIII THE COLLECTED RECOMMENDATIONS AND CONCLUSIONS

In this Part we set out our recommendations and conclusions, with reference to the paragraphs of the report where they appear.

REPLACEMENT OF EXISTING RULES

1. We recommend that all the rules on the admissibility of bad character evidence in criminal proceedings be contained in a single statute, and that the common law rules (including the hearsay exception for evidence of reputation) be abolished.^[1]

EVIDENCE OF BAD CHARACTER

2. We recommend that evidence of a person's bad character should be defined as evidence which shows or tends to show that that person

(1) has committed an offence, or

(2) has behaved, or is disposed to behave, in a way of which a reasonable person might disapprove.^[2]

EVIDENCE OF BAD CHARACTER WHICH IS AUTOMATICALLY ADMISSIBLE

3. We recommend that evidence of a person's bad character should be automatically admissible if

(1) it has to do with the offence charged, or is evidence of misconduct in connection with the investigation or prosecution of that offence; or

(2) all parties agree to its admission; or

(3) it is evidence of the defendant's bad character which the defendant seeks to adduce.^[3]

EVIDENCE OF BAD CHARACTER WHICH IS PRIMA FACIE INADMISSIBLE

4. We recommend that

(1) all other evidence of bad character should be admissible only with the leave of the court, and

(2) leave should be granted only if the evidence falls within one of the exceptions we recommend below.^[4]

Exceptions: non-defendants

Substantial explanatory value

5. We recommend that leave may be given to adduce evidence of the bad character of a person other than a defendant if it has substantial explanatory value.^[5]

Substantial probative value

6. We recommend that leave may be given to adduce evidence of the bad character of a person other than a defendant if it has substantial probative value in relation to a matter in issue in the proceedings which is of substantial importance in the context of the case as a whole.^[6]

Exceptions: defendants

Evidence of substantial explanatory value

7. We recommend that leave may be given to adduce evidence of the bad character of a defendant if it has substantial explanatory value and the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect.^[7]

Evidence of substantial probative value

8. We recommend that leave may be given to the prosecution to adduce evidence of the bad character of a defendant if

(1) the evidence has substantial probative value in relation to a matter in issue (other than whether the defendant has a propensity to be untruthful) which is itself of substantial importance in the context of the case as a whole, and

(2) the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect.^[8]

Evidence of the defendant's propensity to be untruthful

9. We recommend that leave may be given to the prosecution to adduce evidence of the bad character of a defendant which is relevant only to whether the defendant has a propensity to be untruthful if

(1) the evidence has substantial probative value in showing that the defendant has such a propensity,

(2) the defendant has suggested that another person has such a propensity,

(3) the evidence adduced in support of that suggestion does not have to do with the offence charged, and is not evidence of misconduct in connection with the investigation or prosecution of that offence,

(4) without the evidence of the defendant's bad character the fact-finders would get a misleading impression of the defendant's propensity to be untruthful in comparison with that of the other person, and

(5) the interests of justice require the evidence to be admissible, even taking account of its potentially prejudicial effect.^[9]

Evidence to correct a false or misleading impression about the defendant's character

10. We recommend that leave may be given to the prosecution to adduce evidence of the bad character of a defendant if

(1) the defendant is responsible for an assertion (express or implied) which creates a false or misleading impression about the defendant,

(2) the evidence has substantial probative value in correcting that impression, and

(3) the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect.^[10]

11. We recommend that, where the prosecution seeks to rely on this exception in summary proceedings, it should first indicate to the court that the impression created is false or misleading and that the prosecution has evidence to controvert it; the bench should then rule on whether the impression is important enough to need controverting; only if the bench so rules may the prosecution detail the nature of its corrective evidence, and proceed with the full application to introduce it.^[11]

Evidence of the bad character of a co-defendant

12. We recommend that leave may be given to a co-defendant to adduce evidence of the bad character of a defendant where it has substantial probative value in relation to a matter in issue between the co-defendant and the defendant where that issue is itself of substantial importance in the context of the case as a whole – except that, if it has probative value only in showing that the defendant has a propensity to be untruthful, leave may not be given unless, in addition, the defendant's case is such as to undermine that of the co-defendant.^[12]

Statutory guidance

13. We recommend that the legislation should set out the factors to which a court is to have regard when assessing the probative value of bad character evidence or where the interests of justice lie.^[13]

Assumption of truth in assessment of probative value

14. We recommend that, where the court is required to assess the probative value of evidence of a person's bad character, it should be required to do so on the assumption that the evidence is true, except where it appears, on the basis of any material before the court, that no court or jury could reasonably find it to be true.^[14]

Special cases

15. We recommend that section 27(3) of the Theft Act 1968 should be repealed.^[15]
16. We recommend that the admissibility of evidence of the defendant's bad character pursuant to section 1(2) of the Official Secrets Act 1911 should be determined by the above rules.^[16]

PROCEDURAL AND ANCILLARY MATTERS

A notice requirement

17. We recommend that where a party wishes to adduce evidence of the defendant's bad character which does not have to do with the offence charged, and is not evidence of misconduct in connection with the investigation or prosecution of that offence, that party should be required to give notice of the intention to do so, but that requirement may be dispensed with by the court or the defendant.^[17]

An additional safeguard in the case of contaminated evidence

18. We recommend that, in a trial on indictment, where evidence of the defendant's bad character has been admitted with leave, and the judge is satisfied that the evidence is contaminated such that, considering the importance of the evidence to the case against the defendant, a conviction would be unsafe, the judge should be required to discharge the jury or direct the jury to acquit.^[18]

A duty to give reasons

19. We recommend that where a court

(1) rules on whether leave is required for evidence of bad character to be admitted, or

(2) gives or withholds such leave, or

(3) rules on whether the case should be stopped because of such evidence being contaminated,

it must give the reasons for the ruling in open court and those reasons must be recorded.^[19]

Warnings to the jury

20. We conclude that the jury may need to be given warnings by the judge in two situations: first, where no evidence has been adduced about the defendant's character and there is a danger of speculation about it; second, where there is a danger that the jury will give undue weight to bad character evidence which is admitted.^[20]

Severance of counts/informations

21. We recommend that where

(1) a defendant is charged with more than one offence,

(2) evidence of the defendant's bad character is admissible on one of the offences charged but inadmissible on another, and

(3) the defendant applies for the offences to be tried separately,

that application should be granted unless the court is satisfied that the defendant can receive a fair trial.^[21]

GENERAL

22. We recommend that the above rules should apply where the criminal rules of evidence currently apply, namely in courts-martial, summary appeal courts, the Court-Martial Appeal Court and Standing Civilian Courts, and in naval disciplinary courts and professional tribunals established by statute, but should not affect coroners' courts.^[22]

(Signed)

ROBERT CARNWATH, Chairman

HUGH BEALE STUART BRIDGE

MARTIN PARTINGTON

ALAN WILKIE

MICHAEL SAYERS, Secretary

8 August 2001

Ý
Ü   Þ

Note 1   Para 4.85; cl 20(1) and (2) of the draft Bill.    [Back]

Note 2   Para 8.19; cl 1 of the draft Bill.    [Back]

Note 3   Para 8.31; cl 2 of the draft Bill.    [Back]

Note 4   Para 8.32; cl 3 and 6 of the draft Bill.    [Back]

Note 5   Para 9.42; cl 4 of the draft Bill.    [Back]

Note 6   Para 9.41; cl 5 of the draft Bill.    [Back]

Note 7   Para 10.12; cl 7 of the draft Bill.    [Back]

Note 8   Para 11.46; cl 8 of the draft Bill.    [Back]

Note 9   Para 12.13; cl 9 of the draft Bill.    [Back]

Note 10   Para 13.48; cl 10 of the draft Bill.    [Back]

Note 11   Para 13.50; cl 10(9) of the draft Bill.    [Back]

Note 12   Para 14.53; cl 11 of the draft Bill.    [Back]

Note 13   Para 7.19; cl 5(2), 9(7) and 10(8) of the draft Bill.    [Back]

Note 14   Para 15.26; cl 14 of the draft Bill.    [Back]

Note 15   Para 11.55; cl 20(3)(b) of the draft Bill.    [Back]

Note 16   Para 11.61.    [Back]

Note 17   Para 17.3; cl 16 of the draft Bill.    [Back]

Note 18   Para 15.37; cl 13 of the draft Bill.    [Back]

Note 19   Para 17.15; cl 15 of the draft Bill.    [Back]

Note 20   Para 17.20.    [Back]

Note 21   Para 16.20; cl 12 of the draft Bill.    [Back]

Note 22   Para 17.23; cl 18 and Sched 1 to the draft Bill    [Back]